Moss, Fletcher and Isaacs on the EU regulation on insolvency proceedings / edited by Gabriel Moss, QC ; Ian F. Fletcher, QC (HON) ; Stuart Isaacs, QC.
2016
KJE4170 .E255 2016 (Map It)
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Title
Moss, Fletcher and Isaacs on the EU regulation on insolvency proceedings / edited by Gabriel Moss, QC ; Ian F. Fletcher, QC (HON) ; Stuart Isaacs, QC.
Published
Oxford ; New York : Oxford University Press, 2016.
Call Number
KJE4170 .E255 2016
Edition
Third edition.
ISBN
9780199687800 (hardback)
0199687803 (hardback)
0199687803 (hardback)
Description
lvi, 684 pages ; 26 cm
System Control No.
(OCoLC)946611285
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Table of Cases
xxvii
Table of European Legislation and International Conventions
xxxv
Table of Statutes
xlv
Table of Statutory Instruments
xlvii
List of Contributors
xlix
List of Abbreviations
lv
1.
Historical Overview: The Drafting of the Regulation and its Precursors
1
A.
Preliminary
B.
History of the Convention Project: Evolution of the Text
C.
Phase I Draft Convention (1960-1980): Principal Features
D.
Phase II: The Convention on Insolvency Proceedings (1995) and its Relationship to the Original Regulation ('OR') (2000)
From Convention to Regulation
E.
Regulation in Force (31 May 2002)
Post-2002 developments
F.
Revision of the Regulation (2012-2015)
G.
Recast Insolvency Regulation 2015 ('RR')
2.
Insolvency Regulation as an EU Legal Instrument
21
A.
Introduction
B.
Legal Attributes
'Direct applicability'
'Direct effect'
C.
Meaning
Interpretation and the European Union legal order
Interpretation and the multilingual legal order
D.
Solving Interpretative Issues and Questions of Validity: The Court of Justice of the European Union
Jurisdiction
Criteria for references
Procedure
3.
Scope and Jurisdiction
47
A.
Original Regulation ('OR')
Preliminary
Scope of the Regulation
Proceedings expressly excluded from the scope of the Regulation
International jurisdiction
Centre of main interests (COMI)
two categories of insolvency proceedings: Main and territorial
Establishment of the debtor
B.
Principal Effects of the Recast Regulation ('RR') When in Force
Scope
'Mobile COMI'
Territorial (including secondary) proceedings: Establishment of the debtor
Secondary proceedings and the rescue culture: Synthetic secondary proceedings
Jurisdiction for actions deriving directly from insolvency proceedings and closely linked with them
4.
Choice of Law Rules
71
General principles
Renvoi
B.
Basic Choice of Law Rule (Article 4 OR): Lex Concursus
Transaction avoidance
C.
Exceptions to the Basic Choice of Law Rule (Articles 5-15 OR)
Exception I
Third parties' rights in rem (Article 5 OR)
Exception II
Set-off (Article 6 OR)
Exception III
Reservation of title (Article 7 OR)
Exception IV
Contracts relating to immovable property (Article 8 OR)
Exception V
Payment systems and financial markets (Article 9 OR)
Exception VI
Contracts of employment (Article 10 OR)
Exception VII
Rights subject to registration (Article 11 OR)
Exception VIII
Community patents and trade marks (Article 12 OR)
Exception IX
Detrimental acts protected from avoidance (Article 13 OR)
Exception X
Protection of third-party purchasers (Article 14 OR)
Exception XI
Effects on pending lawsuits (Article 15 OR)
D.
Principal Effects of the Recast Regulation ('RR') when in Force
basic choice of law rule (Article 7 RR): Lex concursus
Exceptions to the basic choice of law rule (Articles 8-18 RR)
5.
Recognition and Enforcement
97
B.
Recognition and Enforcement Outside the Regulation
common law
Recognizing the authority of a foreign office-holder
Recognizing foreign orders against third parties
Judicial assistance: General principles
Judicial assistance: Stay of proceedings and related relief
Judicial assistance: Obtaining information
Judicial assistance: Claw-back claims
Ancillary insolvency proceedings
Section 426, Insolvency Act 1986
UNCITRAL Model Law
C.
Recognition under the Original Regulation ('OR')/Recast Regulation ('RR') (Articles 16 and 17 OR/Articles 19 and 20 RR)
Use of terms
General approach to recognition
effects of recognition of main, territorial, and secondary proceedings
Potential conflict with English law
Public policy exception to recognition
Proof of the liquidator's appointment (Article 19 OR/Article 22 RR)
Publication and registration (Articles 21 and 22 OR)
Articles 24-29 RR
D.
Recognition of Judgments under the Original Regulation ('OR')/Recast Regulation ('RR') (Article 25 OR/Article 32 RR)
Recognition and enforceability of other judgments (Article 25 OR and Article 32 RR)
Impact of the RR
Recognition
Enforcement
Interaction with the Brussels Regime for the enforcement of civil judgments
E.
Enforcement of the Rights and Powers of Liquidators within the EU and their Duties and Obligations
powers of the 'liquidator' (Article 18 OR/Article 21 RR)
Article 18 OR
Article 21 RR
Equal treatment of creditors-'hotchpot' (Article 20 OR/Article 23 RR)
Article 20 OR
Article 23 RR
Duty of co-operation (Article 31 OR/Article 41 RR)
Article 31 OR
Article 41 RR
Exercise of creditors' rights (Article 32 OR/Article 45 RR)
Article 32 OR
Article 45 RR
Staying the secondary proceedings (Article 33 OR/Article 46 RR)
Article 33 OR
Article 46 RR
Closure of the secondary proceedings other than by liquidation (Article 34 OR/Article 47 RR)
Article 34 OR
Article 47 RR
Surplus assets in the secondary proceedings (Article 35 OR/Article 49 RR)
Conversion of earlier proceedings (Article 37 OR/Article 51 RR)
Article 37 OR
Article 51 RR
Preservation measures (Article 38 OR/Article 52 RR)
Article 38 OR
Article 52 RR
6.
Effect of the Regulation on Cross-Border Security and Quasi-Security
157
B.
Purposes of the Regulation
C.
Effect of the Regulation on the Rights of Banks
Insolvency proceedings to which the Regulation applies
Articles which are of particular relevance to a bank
Article 4 (choice of law)
Article 5
What is a right in rem?
Article 5(a) Both specific assets and collections of indefinite assets
Article 5(b) The right to dispose of assets and to obtain satisfaction from the proceeds
Article 5(c) Other rights expressly set out in Article 5
Where is a secured asset located?
What does 'shall not affect' mean?
What does the time of opening of proceedings mean?
Relationship between Article 5 and Article 13
Relationship between Article 5 and Article 43
Other case law concerning Article 5
D.
Practical Examples
Example 1
Issues arising: Summary
Issues arising: Commentary
Example 2
Example 3
Example 4
Example 5
Example 6
Example 7
Example 8
Example 9
Example 10
Example 11
7.
Financial Institutions
213
A.
General and Background
General
Basic EU framework for financial institution insolvencies
Overview
Earlier background
B.
Financial Institutions excluded from the Insolvency Regulation
Insurance undertakings
Credit institutions
Investment firms
Collective investment undertakings
C.
Settlement Finality and Collateral Directive
Settlement Finality Directive
Collateral Directive
D.
Credit Institutions Directive
Common principles for bank and insurance company insolvencies
Credit Institutions Directive: Scope and definitions
Credit Institutions Directive: Selective commentary
Title IV
Credit Institutions Directive: Final provisions
E.
Insurance Directive/Solvency II
Insurance Directive/Solvency II: Scope
Insurance Directive/Solvency II: Selective commentary
F.
Bank Recovery and Resolution Directive
Title I
Scope and definitions
Title II
Preparation
Title III
Early intervention
Title IV
Resolution
Title V
Cross-border group resolution
Title VI
Relations with third countries
Title VII
Financing arrangements
Title VIII
Penalties
8.
Commentary on Regulation 1346/2000 and Recast Regulation 2015/848 on Insolvency Proceedings
275
Council Regulation 1346/2000 on Insolvency Proceedings ('OR')
A.
Chapter I: General Provisions
(OR) Article 1-Scope
Debtor
Defined insolvency proceedings
English insolvency proceedings
Excluded undertakings
Intra-Union effects
(OR) Article 2-Definitions
'Court'
'Judgment'
Time of the opening of proceedings
Member State in which assets are situated
'Establishment'
Place of operations
Human means
Goods
(OR) Article 3-International jurisdiction
ideal: Single proceedings with a universal effect
reality: Separate proceedings are permitted
concept of 'opening'
Main insolvency proceedings
Insolvency proceedings limited to the territory of a Member State
(OR) Article 4-Law applicable
Article 4(2) OR
Article 4(2)(e) OR
Article 4(2)(f) OR
Article 4(2)(h) OR
Article 4(2)(i) OR
Article 4(2)(j) OR
Article 4(2)(m) OR
Exceptions to the general rule
(OR) Article 5-Third parties' rights in rem
(OR) Article 6-Set-off
(OR) Article 7-Reservation of title
(OR) Article 8-Contracts relating to immoveable property
(OR) Article 9-Payment systems and financial markets
(OR) Article 10-Contracts of employment
(OR) Article 11-Effects on rights subject to registration
(OR) Article 12-Community patents and trade marks
(OR) Article 13-Detrimental acts
(OR) Article 14-Protection of third-party purchasers
(OR) Article 15-Effects of insolvency proceedings on lawsuits pending
effect of applying Article 15 OR
Article 15 OR is not limited to proprietary claims
Article 15 OR and arbitrations
B.
Chapter II: Recognition of Insolvency Proceedings
(OR) Article 16-Principle
England
Extent of recognition
(OR) Article 17-Effects of recognition
(OR) Article 18-Powers of the liquidator
Main proceedings
Article 3(2) OR proceedings
(OR) Article 19-Proof of the liquidator's appointment
(OR) Article 20-Return and imputation
(OR) Article 21-Publication
(OR) Article 22-Registration in a public register
(OR) Article 23-Costs
(OR) Article 24-Honouring of an obligation to a debtor
(OR) Article 25-Recognition and enforceability of other judgments
Recognition of insolvency judgments
Recognition of non-insolvency judgments
Mode of enforcement of insolvency judgments
Categorization of judgments
Further points
(OR) Article 26-Public policy
C.
Chapter III: Secondary Insolvency Proceedings
(OR) Article 27-Opening of proceedings
(OR) Article 28-Applicable law
(OR) Article 29-Right to request the opening of proceedings
(OR) Article 30-Advance payment of costs and expenses
(OR) Article 31-Duty to co-operate and communicate information
(OR) Article 32-Exercise of creditors' rights
(OR) Article 33-Stay of liquidation
(OR) Article 34-Measures ending secondary insolvency proceedings
(OR) Article 35-Assets remaining in the secondary proceedings
(OR) Article 36-Subsequent opening of the main proceedings
(OR) Article 37-Conversion of earlier proceedings
(OR) Article 38-Preservation measures
D.
Chapter IV: Provision of Information for Creditors and Lodgement of their Claims
(OR) Article 39-Right to lodge claims
(OR) Article 40-Duty to inform creditors
(OR) Article 41-Content of the lodgement of a claim
Alleges preference'
'Security in rem'
'Guarantee'
(OR) Article 42-Languages
E.
Chapter V: Transitional and Final Provisions
(OR) Article 43-Applicability in time
(OR) Article 44-Relationship to Conventions
(OR) Article 45-Amendment of the Annexes
(OR) Article 46-Reports
(OR) Article 47-Entry into force
Recast Regulation 2015/848 on Insolvency Proceedings ('RR')
(RR) Article 1-Scope
Proceedings must be public
Proceedings must be collective
Proceedings can be 'interim proceedings'
Proceedings must be 'based on laws relating to insolvency'
purpose of proceedings must be rescue, adjustment of debt, reorganization, or liquidation
Proceedings must be one of three types
Non-financial' difficulties
English administration proceedings
Article 1(2) exclusions
(RR) Article 2-Definitions
Introduction
'Collective proceedings'
'Collective investment undertakings'
'Debtor in possession'
'Insolvency proceedings'
'Insolvency practitioner'
'Judgment opening insolvency proceedings'
'The time of the opening of proceedings'
'The Member State in which assets are situated'
Registered shares
Book entry securities
Bank accounts
(RR) Article 3-International jurisdiction
Three presumptions
Territorial insolvency proceedings
(RR) Article 4-Examination as to jurisdiction
(RR) Article 5-Judicial review of the decision to open main insolvency proceedings
(RR) Article 6-Jurisdiction for actions deriving directly from insolvency proceedings and closely linked with them
(RR) Article 7-Applicable law
(RR) Article 8-Third parties' rights in rem
(RR) Article 9-Set-off
(RR) Article 10-Reservation of title
(RR) Article 11-Contracts relating to immoveable property
(RR) Article 12-Payment systems and financial markets
(RR) Article 13-Contracts of employment
(RR) Article 14-Effects on rights subject to registration
(RR) Article 15-European patents with unitary effect and Community trade marks
(RR) Article 16-Detrimental acts
(RR) Article 17-Protection of third-party purchasers
(RR) Article 18-Effects of insolvency proceedings on pending lawsuits or arbitral proceedings
(RR) Article 19-Principle
(RR) Article 20-Effects of recognition
(RR) Article 21-Powers of the insolvency practitioner
(RR) Article 22-Proof of the insolvency practitioner's appointment
(RR) Article 23-Return and imputation
(RR) Article 24-Establishment of insolvency registers
(RR) Article 25-Interconnection of insolvency registers
(RR) Article 26-Costs of establishing and interconnecting insolvency registers
(RR) Article 27-Conditions of access to information via the system of interconnection
(RR) Article 28-Publication in another Member State
(RR) Article 29-Registration in public registers of another Member State
(RR) Article 30-Costs
(RR) Article 31-Honouring of an obligation to a debtor
(RR) Article 32-Recognition and enforceability of other judgments
(RR) Article 33-Public policy
(RR) Article 34-Opening of proceedings
(RR) Article 35-Applicable law
(RR) Article 36-Right to give an undertaking in order to avoid secondary insolvency proceedings
(RR) Article 37-Right to request the opening of secondary insolvency proceedings
(RR) Article 38-Decision to open secondary insolvency proceedings
(RR) Article 39-Judicial review of the decision to open secondary insolvency proceedings
(RR) Article 40-Advance payment of costs and expenses
(RR) Article 41-Co-operation and communication between insolvency practitioners
(RR) Article 42-Co-operation and communication between courts
(RR) Article 43-Co-operation and communication between insolvency practitioners and courts
(RR) Article 44-Costs of co-operation and communication
(RR) Article 45-Exercise of creditors' rights
(RR) Article 46-Stay of the process of realisation of assets
(RR) Article 47-Power of the insolvency practitioner to propose restructuring plans
(RR) Article 48-Impact of closure of insolvency proceedings
(RR) Article 49-Assets remaining in the secondary insolvency proceedings
(RR) Article 50-Subsequent opening of the main insolvency proceedings
(RR) Article 51-Conversion of secondary insolvency proceedings
(RR) Article 52-Preservation measures
(RR) Article 53-Right to lodge claims
(RR) Article 54-Duty to inform creditors
(RR) Article 55-Procedure for lodging claims
E.
Chapter V: Groups of Companies
Groups of companies
Co-operation and communication
(RR) Article 56-Co-operation and communication between insolvency practitioners
(RR) Article 57-Co-operation and communication between courts
(RR) Article 58-Co-operation and communication between insolvency practitioners and courts
(RR) Article 59-Costs of co-operation and communication in proceedings concerning members of a group of companies
(RR) Article 60-Powers of the insolvency practitioner in proceedings concerning members of a group of companies
Co-ordination
(RR) Article 61-Request to open group co-ordination proceedings
(RR) Article 62-Priority rule
(RR) Article 63-Notice by the court seised
(RR) Article 64-Objections by insolvency practitioners
(RR) Article 65-Consequences of objection to the inclusion in group co-ordination
(RR) Article 66-Choice of court for group co-ordination proceedings
(RR) Article 67-Consequences of objections to the proposed co-ordinator
(RR) Article 68-Decision to open group co-ordination proceedings
(RR) Article 69-Subsequent opt-in by insolvency practitioners
(RR) Article 70-Recommendations and group co-ordination plan
(RR) Article 71-The co-ordinator
(RR) Article 72-Tasks and rights of the co-ordinator
(RR) Article 73-Languages
(RR) Article 74-Co-operation between insolvency practitioners and the co-ordinator
(RR) Article 75-Revocation of the appointment of the co-ordinator
(RR) Article 76-Debtor in possession
(RR) Article 77-Costs and distribution
F.
Chapter VI: Data Protection
(RR) Article 78-Data protection
(RR) Article 79-Responsibilities of Member States regarding the processing of personal data in national insolvency registers
(RR) Article 80-Responsibilities of the Commission in connection with the processing of personal data
(RR) Article 81-Information obligations
(RR) Article 82-Storage of personal data
(RR) Article 83-Access to personal data via the European e-Justice Portal
G.
Chapter VII: Transitional and Final Provisions
(RR) Article 84-Applicability in time
(RR) Article 85-Relationship to Conventions
(RR) Article 86-Information on national and Union insolvency law
(RR) Article 87-Establishment of the interconnection of registers
(RR) Article 88-Establishment and subsequent amendment of standard forms
(RR) Article 89-Committee procedure
(RR) Article 90-Review clause
(RR) Article 91-Repeal
(RR) Article 92-Entry into force
Appendix 1: European Union: Council Regulation (EC) No. 1346/2000 of 29 May 2000 on Insolvency Proceedings
531
Appendix 2: Virgos-Schmit Report on the Convention on Insolvency Proceedings
555
Appendix 3: Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on Insolvency Proceedings (recast)
619
Appendix 4: Article 249 EC
667
Index
669